Refugee claim acceptance in Canada appears to be ‘luck of the draw’ despite reforms, analysis shows

Despite sweeping changes to the Immigration & Refugee Board that shifted decisions from political appointees to civil servants, a new analysis of who became a refugee in Canada shows massive discrepancy between decision makers, with one adjudicator rejecting every claim coming before her and others accepting all of them.

The analysis of every refugee claim decision in Canada last year reveals cases heard by some adjudicators — who preside over refugee cases like judges do in a criminal court — had an almost predictable outcome before the hearing even began.

“There is an element of the luck of the draw to these decisions. It can be a real problem. When making refugee decisions — we are often talking about life or death decisions if you get it wrong and send someone back to persecution, torture or death,” said Sean Rehaag, an associate professor at Osgoode Hall Law School, York University, who performed the analysis.

In the midst of the study period, the Harper government changed Canada’s refugee determination system, hiring refugee adjudicators through the public service, rather than through appointment by the government.

There was generally a higher percentage of refugee claims accepted under the new system, but in both systems rates fluctuated wildly between adjudicators.

While some members who handled only a few cases had an acceptance rate of 100%, Mr. Rehaag focused on those deciding at least 20 cases to strengthen the rigour of the statistical findings.

Under the old system, the IRB members with the lowest acceptance rates are Sylvie Roy, in Montreal, who accepted none of the 23 cases she decided, and Edward Robinson, in Toronto who accepted 6.5% of the 93 decisions he heard.

The highest acceptance rates came from Shamash Alidina, in Toronto, who is no longer with the IRB, who granted 80% of 30 claims, and Kevin Fainbloom, also in Toronto, who granted 78.6% of 98 decisions.

Under the new system, the lowest acceptance rates came from Stéphane Morin, in Montreal, at 16% of 50 cases, and Brenda Lloyd, in Toronto, who accepted 20.5% of 73 cases. The highest acceptance rates came from Christopher Marcinkiewicz, in Toronto, who accepted 89.4% of 85 cases, and Maria Vega, in Toronto, who accepted 88% of 25 cases.

The data prompt a knee-jerk reaction that the system is unfair, said Mr. Rehaag, who teaches immigration and refugee law, human rights and legal process.

Lorne Waldman, president of the Canadian Association of Refugee Lawyers, said the vast discrepancy “can’t just be coincidence” and shows “a level of arbitrariness” in deciding who is granted refugee protection.

“When we go into a hearing room and face a member with an historically low acceptance rate, you feel that regardless of the merits of the case our chances are very low. It is very disheartening. [This analysis] makes it clear that success doesn’t only depend on the strength of the case but also on who the decision maker is,” he said.

It also shows the need for a more robust and open refugee appeals process.

The IRB, however, urged caution in jumping to conclusions about the adjudicators.

“Statistics on acceptance rates provide an insufficient basis on which to draw conclusions concerning the quality and consistency of decision-making at the IRB,” said spokeswoman Melissa Anderson.

“Acceptance rates of individual IRB members do not reflect the many factors — besides the alleged country of persecution and the conditions in that country — that members must consider before making a determination.”

She declined to comment on specific members’ records or make any of the adjudicators available for an interview. All adjudicators are well-trained, hired on merit and have continuing training, she said.

‘When we go into a hearing room and face a member with an historically low acceptance rate, you feel that regardless of the merits of the case our chances are very low. It is very disheartening’

There are legitimate reasons why decisions by some adjudicators lean in one direction, such as adjudicators specializing in claimants from a certain region. (Someone hearing cases from Syria will have a higher acceptance rate than someone hearing claims from France.) Some members hear more expedited cases, which are typically urgent claims with specific aggravating or mitigating facts.

“My view is that even when you try to control for those sorts of differences, a very large difference in acceptance rates still exists,” said Mr. Rehaag. “You get into the more idiosyncratic elements of individual identity.”

These may reflect the politics of the adjudicator or impressions about a country. If adjudicators have been on a relaxing holiday in a country they may be less likely to accept a claimant faces horrors there.

Mr. Rehaag obtained the data from the IRB through the Access to Information Act and analyzed the numbers as part of his academic research. He has performed similar analysis since 2006.

The government defended the refugee process.

“Canada has one of the most generous refugee policies in the world. We welcome about one out of every 10 of all resettled refugees globally and are consistently among the top three countries accepting resettled refugees,” said Sonia Lesage, a spokeswoman for Citizenship and Immigration Canada.

“Decisions are made based on the merits of the specific facts presented in an individual case, and in accordance with Canada’s immigration laws.”